Plaintiffs seek a declaratory judgment "that defendants are violating Article I, Section 8, Clause 11 of the United States Constitution in their actions against the Democratic Republic of Vietnam and other countries as described in the President's message of May 8, 1972." Plaintiffs also request the Court to enjoin defendants from carrying on further acts of war, especially those acts announced by the President in his message of May 8, 1972, and by the Secretary of Defense in his press statement of May 10, 1972, unless those acts are specifically authorized by Congress.

On May 12, 1972, this Court ordered that this action be dismissed as to the President and that the style of this action be changed to read Hon. Mike Gravel, et al. v. Melvin R. Laird, et al. This action is now before the Court on plaintiffs' motion to convene a three-judge court and defendants' motion to dismiss for lack of jurisdiction and failure to state a claim upon which relief can be granted.

An interlocutory or permanent injunction restraining the enforcement, operation or execution of any Act of Congress for repugnance to the Constitution of the United States shall not be granted by any district court or judge thereof unless the application therefor is heard and determined by a district court of three judges under Section 2284 of this title.

Neither in their complaint nor in their motion to convene a three-judge court have plaintiffs made any allegation asserting the unconstitutionality of any Act of Congress. Indeed, as defendants point out, plaintiffs' complaint centers about allegations that defendants are conducting hostilities in Southeast Asia without an Act of Congress specifically authorizing such activities.

In considering a motion to convene a three-judge court, the district judge to whom the case is first assigned looks not only to the statutory requirements of 28 U.S.C. § 2282 but to jurisdictional prerequisites as well. If the district judge finds that federal jurisdiction is lacking, he may dismiss the action without referring the matter to a three-judge court. Lion Mfg. Corp. v. Kennedy, 117 U.S. App. D.C. 367, 330 F.2d 833 (1964).

Defendants contend that this Court lacks jurisdiction because: (1) plaintiffs lack standing, as citizens generally or as Congressmen, to challenge defendants' actions herein; (2) this is a suit against the United States to which it has not consented; and (3) the propriety of the United States military operations in question here presents a non-justiciable political question.

The United States Court of Appeals for the District of Columbia Circuit has made it very clear that the question of the legality of the military operations in Vietnam is a political question beyond the jurisdiction of the courts. Luftig v. McNamara, 126 U.S. App. D.C. 4, 373 F.2d 664, 665-66, cert. den. 387 U.S. 945, 87 S. Ct. 2078, 18 L. Ed. 2d 1332 (1967); Mora v. McNamara, 128 U.S. App. D.C. 297, 387 F.2d 862, cert. den. 389 U.S. 934, 88 S. Ct. 282, 19 L. Ed. 2d 287, reh. den. 389 U.S. 1025, 88 S. Ct. 584, 19 L. Ed. 2d 675 (1967). The Court in Luftig also affirmed as "eminently correct" the District Court's finding that that action presented an unconsented suit against the United States. 373 F.2d at 665.

In light of the foregoing, this Court finds that it lacks jurisdiction over the subject matter of this action on the grounds that: (1) plaintiffs lack standing to sue herein; (2) this is an unconsented suit against the United States; and (3) the propriety of the United States military ...

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